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2
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3
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- Advertising Below the Thresholds
- Contracts below the thresholds of the Directives are subject to the
Treaty.
- The European Court of Justice has confirmed in recent cases that
contracting authorities must ensure a degree of advertising sufficient
to ensure compliance with Treaty requirements for non-discrimination,
equal treatment and transparency.
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4
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- This advertising should be of an adequate degree in order to enable
different businesses to compete so that the contract could be awarded to
the tenderer submitting the best bid, this guaranteeing that public
money is well spent.
- On the 23rd June 2006, the European Commission published an
Interpretative Communication on the Community Law applicable to contract
awards not or not fully subject to the provisions of the Public
Procurement Directives
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5
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- This document states
- According to the European Court of Justice the principles of equal
treatment and of non-discrimination imply an obligation of transparency
which consists in ensuring, for the benefit of any potential tenderer, a
degree of advertising sufficient to enable the market to be opened up
to competition.
- The obligation of transparency requires an undertaking located in
another Member State has access to appropriate information regarding
the contract before it is awarded, so that, if it so wishes, it would
be in a position to express its interest in obtaining that contract.
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- It further goes on to state
- The Commission is of the view that the practice of contacting a number
of potential tenderers would not be sufficient………such a selective
approach cannot exclude discrimination against potential tenderers
……….in particular new entrants to the market.
- …the only way that the requirements laid down by the ECJ can be met is
by publication of a sufficiently accessible advertisement prior to the
award of the contract……..published by the contracting entity in order
to open the contract award to competition.
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- Interpretation covers:
- Low value (under the EC Directive thresholds)
- Concession contracts (non-works)
- Contracts for Annex II B Services
- Works Contracts under EC thresholds
- Every contract not covered by OJEU publication requirements
- OJEU allows for non-OJEU contracts to be advertised through the Official
Journal.
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- Scottish Government
- In the Scottish Regulations it states that
- "when a contracting authority proposes to award a public contract
which has an estimated value ... below the relevant threshold, or where
a proposed public contract is otherwise exempt from the requirement for
prior publication of a contract notice, the contracting authority shall,
if required by its general Community obligations ... ensure a degree of
advertising which is sufficient to enable open competition and meet the
requirements of the principles of equal treatment, non discrimination
and transparency”.
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- The main types of contracts affected are:
- Contracts below the value threshold at which the detailed
advertising procedures in the Scottish Regulations apply
- Contracts for services categorised as 'Part B'
- Contracts otherwise exempt from application of the detailed advertising
procedures in the Scottish regulations
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10
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11
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- Electronic Tendering
- Part 1: where we are now.
- Part 2: what’s next?
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12
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13
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- Since 2004, eSourcing Scotland has been used for:
- 1,600 procurements
- the issue of 19,000 ITTs (or
similar)
- & the receipt of 8,500
tenders.
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- Since 2004, eSourcing Scotland has been used for:
- 27 electronic auctions
- resulting in:
- savings to the taxpayer of £10
million.
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15
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- The benefits of electronic tendering:
- (for suppliers)
- cost-savings (on printing, paper
&
- postage)
- reduced lead-times (hours rather
than
- days)
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16
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- The benefits of electronic tendering:
- (for buyers)
- cost-savings (on printing, paper
&
- postage)
- reduced process-times
- improved audit trails
- electronic document storage
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17
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- “Mid-stream” activities
- roll-out is now a routine
process
- help-desk, and coaching
- tech. upgrades
- exploiting the technology
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18
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- What’s next?
- Smarter technology
- Smarter use
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19
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- What’s next: smarter technology
- fewer technical problems
- better interaction between
technologies
- more functionality/requested
features
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20
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- What’s next: smarter use
- more standardisation of ITTs
- more “open bid” procurements
- technology for contract
management
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21
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22
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23
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24
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- Failing to learn the procurement rules before you start
- Not wanting to work within the procedures and looking for ways to skirt
around them
- Failing to stay alert to the market
- Read the OJEU or use an information provider
- Visit public sector websites
- Read the publications that the public sector read
- Use FOI to find out about past tenders
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- In OJEU contracts
- Read the advert properly
- Understand the tendering procedures
- Understand the minimum timescales allowed
- Understand the grounds for exclusion
- Understand the proper response processes
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- Failing to express interest
- In time
- In the manner required
- Not asking about the marking and weighting of pre-qualification
questionnaire (PQQ) or tender (ITT) answers
- Failing to quantify or qualify answers in PQQs and ITTs
- Failing to ask about disqualifying criteria
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27
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- Chasing opportunities that are unrealistic
- Making assumptions on what the buyer wants
- Not verifying the acceptability of variations before offering them
- Doing the most important work close to the deadline
- Delivering the tender after the closing date and time
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- Not providing the number of hard copies asked for
- Including company brochures or padding out responses
- Holding back on discussing relevant concerns
- Not reading the terms and conditions of contract
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- Failing to confirm payment terms
- Failing to protect Intellectual Property
- Failing to consider Sustainability / Environmental / Social issues
- Failing to add value in the tender
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30
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31
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32
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- Notification of award criteria
- The award criteria must be mentioned in the contract notice or contract
documents.
- They should be listed in descending order of importance.
- It is good practice to also include the relative weighting given to each
of the criteria.
- All tenderers to be reasonably informed of the criteria and arrangements
which will be applied to identify the most economically advantageous
tender.
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33
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- The contracting authority shall include the following information in the
invitation –
- the relative weighting of criteria for the award of the contract or,
where appropriate, the descending order of importance for such
criteria, if this information was not specified in the contract notice.
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34
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- Where a contracting authority intends to award a public contract on the
basis of the offer which is the most economically advantageous it shall
state the weighting which it gives to each of the criteria chosen in the
contract notice or in the contract documents or, in the case of a
competitive dialogue procedure, in the descriptive document.
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35
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- When stating the weightings, a contracting authority may give the
weightings a range and specify a minimum and maximum weighting where it
considers it appropriate in view of the subject matter of the contract.
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36
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- Where, in the opinion of the contracting authority, it is not possible
to provide weightings for the criteria on objective grounds, the
contracting authority shall indicate the criteria in descending order of
importance in the contract notice or contract documents or, in the case
of a competitive dialogue procedure, in the descriptive document.
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37
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- The appraisal of tenders should cover five elements:
- An evaluation of the ability, availability and capacity of each tenderer
to undertake the work
- A technical assessment
- A financial assessment
- A commercial assessment
- Longer-term considerations
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- When evaluating tenders, authorities should:
- Approach the evaluation with an open mind and complete impartiality
provided all requirements are met, and award the contract to the
candidate with the best Value for Money bid
- Evaluate tender prices from all candidates on a consistent basis
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39
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- Based on the Commission’s Practical Guide on
- EC-funded aid contracts for
consultancy services:
- Distribute maximum of 100 points between various criteria on technical
aspects
- Evaluate tenders, total scores, express as percentages
- Exclude if minimum criteria not met
- Evaluate financial aspects, express as percentages
- Apply relative weighting (80:20 Technical : Financial)
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40
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- The most economically advantageous tender is established by weighing all
the candidates’ overall technical scores against their business scores
on a predetermined percentage basis.
- This is done by multiplying:
- The scores awarded to the technical offers by, say, 0.80
- The scores awarded to the financial offers by, say, 0.20
- And adding the results together
- The contract award procedure is then followed
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41
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- Technical Evaluation Bid
X Bid Y Bid Z
- Evaluator A 55
88 84
- Evaluator B 60
84 82
- Evaluator C 59
82 90
- Total 174 254 256
- Average score 58.00 84.67 85.33
- Technical score
67.97*
99.22 100.00
- Financial Evaluation
- Total fees * €951.32 €1,060.452
- Financial score * 100.00 89.71
- Composite Evaluation
- Technical score x 0.80 *
79.38 80.00
- Financial score x 0.20 *
20.00 17.94
- Overall score *
99.38 97.94
- Final ranking *
Eliminated 1st 2nd
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42
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43
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- An Advice and Enquiry service for suppliers to the Scottish public
sector
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44
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- McLelland Recommendation 12.5
- Suppliers need to have a single point of enquiry within Scotland to
which they can address concerns and obtain clarification of decisions
and procedure related to public procurement. There should be a
designated point of appeal positioned within the Scottish Executive and
authorised to address this need….
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- What is it not?
- Not a formal remedy- Courts or EU
- Not arbitration on disputes
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46
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- What is it?
- Advice
- Issues
- Confidential & Impartial
- Focus on improvement
- Working with
- Centres of Expertise
- Procurement authorities
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- Ministerial support (PPRB)
- Business Org support
- Procurement authorities support
- Centres of Expertise support
- Supplier support *
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48
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- 60 approaches for advice on process
- 18 cases with SPoE direct involvement
- All public sectors – large/small suppliers
- Outcomes: clarification, retender, legal, unresolved.
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- Further information:
- scotland. gov.uk/Topics/Government/Procurement
- How do I contact it ?
-
spoeprocurement@scotland.gsi.gov.uk
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50
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51
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52
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- UK Government Sustainable Development Strategy committed the public
sector to lead by example.
- The Development Strategy established a business-led Sustainable
Procurement Task Force to bring about step-change in procurement
practice.
- The Development Strategy defined sustainable development in broad
social, environmental and economic terms.
- The term encompasses all issues where procurement is seen as having a
role in delivering economic, social and environmental policy objectives.
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- There are a number of government policies where public procurement is
seen as a lever to sustainability, which include:
- Apprenticeships and Skills
- Equality – gender, race, disability
- EU Procurement Markets
- Fair and Ethical Trade
- Human Rights and Core Labour Standards
- Innovation
- Local Labour – UK Jobs and Manufacturing
- Regeneration
- SMEs (including black and minority ethnic enterprises [BMEs], women
owned [WO] and disabled owned [DO] businesses and social enterprises)
- Sustainable Procurement
- Third Sector Organisations (TSOs)
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54
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- Social Procurement
- Numerous possibilities for taking account of social considerations in
public procurement, provided that the principles of non-discrimination
and transparency are respected
- Criteria involving social considerations may be used to determine the
most economically advantageous tender
- where they provide an economic advantage for the contracting authority
- linked to the product or service which is the subject matter of the
contract.
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55
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- Social Procurement
- A criterion that makes it possible to evaluate the quality of a service
intended for a given category of disadvantaged persons may be used.
- In addition, it may also be possible to use a condition related to the
combating of unemployment as an additional criterion in respect of two
or more economically equivalent tenders.
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- Environmental Issues
- The Public Sector Directive 2004/18 clarifies the scope to include
environmental and social issues in the public procurement process.
- For example:
- Accessibility criteria must be included in the technical specification
wherever possible, and ‘green’ production process standards and
relevant part of eco-labels may be specified.
- At the selection stage procurers may consider relevant environmental
and social aspects of technical capacity and ability (e.g.
environmental management systems), and, in looking at track record,
they can consider social and environmental offences among the grounds
for exclusion.
- Relevant environmental characteristics relating to whole life costs and
quality may be included in the award criteria.
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57
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- Environmental Issues
- Contracting authorities can require evidence of those environmental
management measures the provider will be able to apply that are relevant
to the execution of the contract.
- This option is only available when contracting for works and services
because an environmental management scheme will not be directly relevant
to a supplies contract.
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- Where they require independent certification, contracting authorities
should refer to:
- The EU Eco-Management and Audit Scheme (EMAS); or
- Environmental management standards based on the relevant European or
international standards;
- And they must recognise:
- Equivalent certificates from bodies established in other member states;
and
- Other evidence of equivalent environmental management measures.
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- Environmental Issues
- Scope to decide how to draw up specifications - the key stage at which
to consider environmental issues.
- Do not need to specify the cheapest product, therefore able to purchase
products such as recycled paper, ‘green’ electricity or energy efficient
appliances, provided they efficient and effective use of financial
resources is ensured.
- Specifying in sustainable/environmental terms sends a clear indication
that you take sustainability/environmental issues seriously.
- In drawing up specifications whole-life costs should be considered.
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- Environmental Issues
- Free to specify in terms of performance or functional requirements,
which can include environmental aspects.
- Focussing on outcome or functionality desired allows suppliers to be
innovative, to suggest more environmentally preferable solutions, and to
find the most cost-effective ways of meeting environmental objectives.
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62
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63
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64
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65
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66
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67
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- On request from the party concerned, the contracting authority shall as
quickly as possible and within 15 days of a written request inform:
- any unsuccessful candidate of the reasons for the rejection of his
application,
- any unsuccessful tenderer of the reasons for the rejection of his
tender, including, for the cases referred to in Article 23, paragraphs
4 and 5, the reasons for its decision of non-equivalence or that the
works, supplies or services do not meet the performance or functional
requirements,
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- any tenderer who has made an admissible tender of the characteristics
and relative advantages of the tender selected as well as the name of
the successful tenderer or the parties to the framework agreement.
- inform participants as soon as possible concerning outcome of a
procurement procedure including grounds for decision not to proceed
- Information on outcome of procurement procedure may be withheld where
release would:
- impede law enforcement;
- be contrary to Public Interest;
- prejudice economic interests of economic operators or fair
competition between them.
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- The timelines given are the minimum (of at least 10 days) under the
‘Alcatel’ mandatory standstill period and show the days by which
specific actions by:-
- The tenderer (i.e.) a request for additional de-briefing within the
standstill period), and
- The contracting authority (i.e. notify all tenderers of the award
decision and the completion of any requested additional de-briefing)
- in order to comply with the minimum period before entering into a
contract (assuming no legal challenges are made in Court).
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- Notes:
- Depending on the day of the initial notification of the intention of the
contract award decision, given the very tight timescales for the
additional debriefing, it may be more practical to extend the end-date
of the standstill period beyond the minimum of 10 calendar days.
- The ‘traditional’ de-briefing requirement (within 15 days of receiving a
written request) remains where a tenderer does not seek an additional
de-briefing within the first 2 working days of the standstill
period. In any case, all
tenderers can make formal complaints in Court within the standstill
period regardless of having requested or received debriefing within the
standstill period and Courts can agree to grant interim measures
preventing contract award.
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- Contracting authorities are required to despatch a contract award notice
within 48 days.
- These notices provide for the publication of the "price or range of
prices paid" and the "value of winning awards or the highest
and lowest offer taken into account in the award of the contract".
- Contract Award Notices can be very useful sources of information,
particularly for small firms.
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Notes
